dissenting: To my mind,-the judgment of the majority is at variance with the legislative intent touching the subject of adoption, and henc.e I am constrained to state the reasons for my dissent.
On 26 July, 1912, John A. Weathers filed in the Superior Court of Harnett County a petition for the adoption of Irma Johnson, a minor residing at that time with the petitioner in said county. The petition recites that Irma Johnson is a female child, five years of age, the daughter of L. J. and Martha Johnson; “that Martha Johnson, mother of the child, has been living away from her husband and child for the past two years, and takes no interest whatever in said child”; that the natural father of the child is not capable of properly providing for said minor, and gives his consent to her adoption by the petitioner; that the child has no estate of any kind, and is entirely dependent upon the petitioner, with whom she has resided for two years; and that the petitioner desires to adopt said child for life, to which adoption L. J. Johnson consents.
Thereupon, the court made and caused to be entered an order of adoption, based upon the finding “that Irma Johnson is a child without any estate; that Martha Johnson, mother of the child, is living away from her husband and child, and takes no interest whatever in said child; and that L. J. Johnson, father of the child, is not capable of properly providing for said child, and consents to the adoption of the child by J. A. Weathers, who is a proper and suitable person to have the custody of said child, and who desires to adopt her for life.” Following the adoption, Irma Johnson lived in the home of John A. Weathers and his wife and assumed the name of Irma Johnson Weathers.
It appears as a fact that Martha Johnson abandoned her legal husband and children and thereafter associated herself in unlawful relation with one Frank Parker.
Irma Johnson Weathers lived with her foster parents, John A. Weathers and his wife, who had no other children, for nearly ten years, when they were all killed in an automobile accident, 6 April, 1922, Irma Johnson Weathers surviving both John A. Weathers and his wife.
This suit is a contest over the estate of John A. Weathers. The plaintiffs are his collateral heirs, while the defendants are the heirs of Irma Johnson Weathers, or they claim through her.
*442It is conceded that, if the adoption in 1912 be valid, Irma Johnson Weathers succeeded to or inherited the estate; otherwise it is to go to the plaintiffs.
Let it be observed in the outset that this attack upon the order of adoption is not made by the natural parents of Irma Johnson, or any one claiming under her, but by the collateral heirs of John A. Weathers, deceased. This observation is made in limine, because it has been held that attacks of this kind should not be entertained when made by the heirs or representatives of the adoptive parent, who was a party to the proceeding, except for jurisdictional defects appearing on the record. Coleman v. Coleman, 81 Ark., 7; Wilson v. Otis, 71 N. H., 483; Morris v. Dooley, 59 Ark., 483; Watts v. Dull, 184 Ill., 86; Foley v. Foley, 61 Ill. App., 577; Crocker v. Balch, 104 Tenn., 6. And in the absence of evidence to show a want of jurisdiction, the presumption in favor of such jurisdiction should prevail. Josey v. Brown, 119 Ga., 758; In re Camp, 131 Cal., 469.
It has also been-held that where the court has jurisdiction of the subject-matter and of the parties, an irregularity which might render the decree voidable at the election of the infant is no ground for a collateral attack by those claiming under the adoptive parent. Sewall v. Roberts, 115 Mass., 262. The fact that the natural parents were not served with notice of the proceeding to adopt, their child has heen held not to render an order of adoption entered in such proceeding invalid as to the parties thereto and their privies, although the proceeding might have been successfully attacked by the parents for that reason. Coleman v. Coleman, 81 Ark., 7; Woodard’s Appeal, 81 Conn., 152; Sullivan v. People, 224 Ill., 468; Ross v. Ross, 129 Mass., 243; Beatty v. Davenport, 45 Wash., 555; 30 L. R. A. (N. S.), 147 note; 1 R. C. L., 608.
In Woodard’s Appeal, supra, the Court reasoned that even though the parents of the adopted child had the right to contest the validity of the adoption in so far as it deprived them of their legal parental rights, because no notice of the proceeding had been given to them, it did not follow that a decree giving to the infant statutory capacity of inheritance from a stranger, rendered in pursuance of jurisdiction conferred by statute and in the manner prescribed thereby, should be held invalid for that reason.
In the case of In re Evans, 106 Cal., 565, the same view is expressed in the following language: “Various irregularities in the proceedings are urged, but, after these papers were executed before the judge, and this man and this child lived together as father and daughter for ten years and down to the day of his death, it requires more than mere irregularities to brush aside and annul a relationship entered into with *443all honesty of purpose, lived up to for many years, and only severed by tbe band of death.” To like effect are the decisions in Estate of McKeag, 141 Cal., 403; In re Johnson, 98 Cal., 545; Parsons v. Parsons, 101 Wis., 83; Van Matre v. Sankey, 148 Ill., 536; Sewall v. Roberts, 115 Mass., 276.
And in Nugent v. Powell, 4 Wyo., 201, it is said: "Notwithstanding these proceedings in adoption, the father might at any time since they took place have brought an action for the possession or custody of the child, and no one will contend, or perhaps can successfully contend, that in such case these adoption proceedings would constitute a bar to the father’s action, or that they were conclusive upon him. But it does not follow that because the adoption proceedings were not conclusive upon the father, they were not conclusive upon the parties to the proceedings and their privies; on the contrary, we think they are, and so hold.”
Again, it is the holding of a number of courts that though the adoption may be voidable at the instance of the child or its natural parents because of a failure to comply with some requirement of the statute, yet if all the conditions have been performed or complied with on the part of the child, or of those who agreed and consented to the adoption, so that the adoptive parent has received full consideration or recompense therefor, the child will ordinarily be entitled to enforce its property rights arising under such adoption. Chehak v. Battles, 133 La., 107; Starkey v. McDermott, 91 Mo., 647; Nowack v. Berger, 133 Mo., 24; Burns v. Smith, 21 Mont., 251; Kofka v. Rosicky, 41 Neb., 328; Van Tine v. Van Tine (N. J.), 15 Atl., 249; 1 R. C. L., 617.
In Wolf’s Appeal (Pa.), 13 Atl., 764, this position is clearly stated as follows: “Nearly nine years after the decree was entered, and more than one year after the death of her adopted father, his administrator and collateral heirs come into court and ask that this decree of adoption be vacated. They are not here in the interest nor on behalf of the innocent subject of adoption, but decidedly against the same. They are either strangers to the adoption proceedings, and therefore have no standing in court, or they are privies in blood or-in law, and stand in .the shoes of Samuel Sankey, through and under whom they claim. Surely Samuel Sankey, if living, would not be heard in this Court questioning its decree made at his solicitation. He invoked the jurisdiction of the court; he asked that the decree of adoption should be made; he got what he desired; and he would not now be allowed to question the means he set in motion. If any wrong was done, Samuel Sankey did it, and neither he nor those who claim under him can be permitted to take advantage of his wrong to the prejudice of an innocent party. On the argument many cases were cited where decrees of adoption have *444been set aside at tbe instance or in tbe interests of tbe-adopted child, but none were cited nor will any likely ever be found where such decrees were revoked at tbe instance of tbe party who invoked tbe power of tbe court, and sought and obtained its decree, when such revocation would be to tbe prejudice of tbe innocent child.”
Tbe above cases are cited only to show bow tbe matter has been dealt with in other jurisdictions. Tbe present record, of course, must be considered in tbe light of our own legislation on tbe subject. It is conceded that tbe act of adopting a child is not a matter of common-law origin, but was taken from tbe civil law and introduced here by statute. Furgeson v. Jones, 17 Ore., 204. Tbe pertinent sections on tbe subject as found in chapter 2 of tbe Consolidated Statutes provide as follows:
First, that any person desiring to adopt a minor child may file a petition in tbe Superior Court of tbe county wherein such child resides, setting forth tbe name and age of tbe child and tbe names of its parents, whether tbe parents or either of them are living, and if there be no living parent, tbe name of tbe guardian, if any, and if there be no guardian, tbe name of tbe person having charge of the child or with whom such child resides, tbe amount and nature of the child’s estate, if any, and especially whether tbe adoption is for tbe minority or for tbe life of the child. C. S., 182.
Second, that the parent or guardian, or the person having charge of such child, or with whom it may reside, must be a party of record in tbe proceeding. C. S., 183.
Third, that in all cases where the parent or parents of any child has wilfully abandoned tbe care, custody, nurture and maintenance of the child to kindred, relatives or other persons, such parent or parents shall be deemed to have forfeited all rights and privileges with respect to the care, custody and services of tbe child. C. S., 189.
It is not required that tbe proceeding be adverse; it may be ex parte, and not infrequently is; it is commenced by petition; no summons is necessary. Rector v. Logging Co., 179 N. C., 59; Caldwell v. Wilson, 121 N. C., p. 453. Tbe parents of tbe child, if living, must appear as parties of record. Here they do appear as parties of record. Tbe father consents to tbe adoption. Tbe mother does not, but it is found as a fact “that Martha Johnson, mother of tbe child, is living away from her husband and child and takes no interest whatever in said child.” While this finding, standing alone, may not be sufficient to show a wilful abandonment on the part of Martha Johnson, such as is required by C. S., 189, to forfeit all her rights and privileges with respect to tbe care, custody and services of such child, yet it does appear by evidence in tbe present proceeding, that, as a matter of fact, tbe said Martha *445Johnson did separate herself from her husband and children and thereafter live in adultery with one Frank Parker. What more is necessary to show a wilful abandonment of. her infant daughter, less than three years of age? If this evidence be competent, and I think it is, the failure to notify her at the time, ought not to be held as a fatal defect to the adoption proceeding. She had forfeited all her rights and privileges with respect to the care, custody and services of such child; and having thus forfeited her rights, no notice to her was required in order to give the court jurisdiction. Nugent v. Powell, 4 Wyo., 173; Wilson v. Otis, 71 N. H., 483. If notice to the natural parent has been rendered unnecessary by a previous abandonment, such parent is bound by the decree, was the holding in Richards v. Matheson, 8 S. D., 77. Likewise, in James v. James, 35 Wash., 653, it was held that where a child is in the custody of its father and the mother is living separate and.apart, her consent is not essential to a proceeding for its adoption. The pertinent decisions are to the effect that even jurisdictional facts, or those necessary to show that a court or board of special or limited powers has acted within its jurisdiction, may be established by extrinsic evidence, in the absence of a statute requiring such facts to appear of record. In re Williams, 102 Cal., 70; Van Dusen v. Sweet, 51 N. Y., 378; Williams v. Cammack, 27 Miss., 209.
Here, the reason and excuse for proceeding without the consent of Martha Johnson, since she had forfeited her rights of custody, etc., under C. S., 189, may be shown by extrinsic evidence in aid of upholding the validity of the proceeding, for a decree of adoption is not necessarily invalid because it does not recite, nor the petition allege, the assent of the parents or facts excusing tljeir assent. Wilson v. Otis, 71 N. H., 483. See, also, Crawford v. Wilson, 139 Ga., 465.
I do not agree to the proposition stated in 1 R. C. L., 603, and approved by the majority opinion, for I do not think it is supported by the weight of authority or the better-considered decisions, that jurisdiction in adoption cases, both as to the subject-matter of the judgment and as to the persons to be affected by it, “must appear on the record, and everything will be presumed to be without the jurisdiction which does not distinctly appear to be within it.” - In the first place, when a court has attained the dignity of a court of record, there is a presumption in favor of its jurisdiction and the rightfulness of its decrees, when it assumes to act, and, until it has attained such dignity, it has no record by which it may speak at all. In the second place, even if its jurisdiction be special in such cases, unless the statute require some written evidence of its jurisdiction to be made and preserved, the general rule respecting judicial officers and courts of limited authority is that the jurisdictional facts, upon which their decrees rest, may be *446shown by extrinsic evidence, oral or written, in the absence of a statute requiring such facts to appear in the minutes or other record of its proceedings. Jolly v. Foltz, 34 Cal., 321; Williams v. Cammack, 27 Miss., 209; Barnard v. Barnard, 119 Ill., 98; Estate of Williams, 102 Cal., 70.
Certainly in a case like the present, a strict construction of these statutes ought not to be applied for the purpose of thwarting the will of the adoptive parent, and disinheriting an adopted child in favor of the kindred by blood, whom the adoptive parent had sought to exclude from participating in his estate by the adoption of the child of another. Rather in such case, it seems to me, a' liberal operation and intendment should be given the statutes to support a proceeding taken in good faith thereunder. Cofer v. Scroggins, 98 Ala., 342; Fosburg v. Rogers, 114 Mo., 134.
Speaking.to the question in Nugent v. Powell, 4 Wyo., p. 186, Clark, J., said: “It must be admitted in the beginning that a proceeding in adoption was wholly unknown to the common law, and in our system of jurisprudence it is purely a statutory matter. Hence it follows that, in order to give any validity to such proceedings, they must have been conducted in substantial conformity with the provisions of the statute, and its requirements observed; but, notwithstanding this, it ought not to be overlooked, in the examination of cases growing out of the exercise of this statutory right, that the right is a beneficial one, both to the public and those immediately concerned in its exercise. ... In cases of this kind it is not the duty of the court to bring the judicial microscope to bear upon the ease, in order that every slight defect might be enlarged and magnified, so that a reason might be found for declaring invalid an act consummated years before, but rather approach the case with the inclination to uphold such acts, if it is found that there was a substantial compliance with the statute.”
I recognize the force of the argument that the rights of parents over their children should not be lightly dealt with, or easily swept away, and with this I readily concur; but jealous as the law may be of the rights of natural parents over their children, with all due deference, it seems to me that in the ease at bar this solicitude has reached the stage of “a vaulting ambition which o’erleaps itself and falls on t’other side.” There are other adoption proceedings, in North Carolina which may be affected by the present decision. I think we are setting a precedent which will rise up to trouble us in the future.
For the reasons given,. I must dissent from the judgment to be rendered in this case.